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At CLI, we see non-discrimination laws like Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) of 1990, and Section 1557 of the Affordable Care Act (ACA) as necessary protections to ensure every person has access to the basic services that many people take for granted. Equitable access to high-quality healthcare, in particular, is a human right — regardless of what language you speak or where you come from.

On May 24, 2019, new revisions to Section 1557 of the ACA were proposed, including repeals to certain provisions that provide limited English proficient (LEP) individuals and those with varying communication needs (such as deaf and hard-of-hearing individuals) with free access to auxiliary aids and language services.

In underserved communities, laws like Section 1557 can make all the difference, and we don’t want to see the new revisions create a snowball effect.

The public has 60 days to comment on the proposed rules. You can see a list of specific issues the U.S. Department of Health and Human Services (HHS) is requesting comment on in the Proposed Rule on Section 1557 document released by HHS (starting on page 176). Please take the time to make your voice heard. I know we will.

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So what are the proposed language access provisions?

Here’s a rundown on the more pronounced proposed changes to Section 1557:

Notice requirements

Currently under Section 1557, covered entities must post their non-discrimination policies and taglines that describe the ability for individuals to receive free language assistance services. The taglines must be posted in the covered entity’s top 15 languages. The new revisions aim to eliminate the tagline and non-discrimination posting requirements in “significant” publications and communications.

Qualified interpreters

Under the 2016 rule, the word “qualified” was added with a definition to describe the requirements interpreters and translators must meet. This was a change from previous legislation that used the term “competent.” The new revisions propose to remove the word “qualified” but leave the definitions intact.

Language access plans

While having a formal language access plan is not specifically required under the current iteration of Section 1557, it’s something the Office for Civil Rights considers when evaluating a covered entity for compliance. Mention of language access plans will be stricken under the proposed rule, and whether the covered entity has developed and implemented such a plan will no longer be a consideration when evaluating compliance.

Video remote interpreting (VRI) standards

Currently under Section 1557, VRI for LEP individuals must comply with the standards set forth by the ADA that state the covered entity must use high-quality, real-time video that does not lag, is not choppy, and is not grainy; voices must be clear and audible; there needs to be a “dedicated high-speed, wide-bandwidth video connection or wireless connection”; images need to be sharply delineated and both the interpreter’s and patient’s hands, fingers, arms, and face need to be visible; and adequate training needs to be provided to staff using VRI equipment and services. Proposed revisions include repealing the visual standards but keeping the audio standards for remote interpretation (“clear, audible transmission of voices; use of quality video connection without lagging or irregular pauses in transmission; and applicable training for staff to use the remote interpreting technology”).

It’s important to note that the VRI standards will not change for individuals with communication needs protected under the ADA; this change is only applicable to LEP individuals.

Concordance with current standards

The new revisions plan to make Section 1557 more consistent with the LEP guidance standards set forth by the Department of Justice (DOJ). This would include changing the provisions for meaningful access for LEP individuals. The new provision would change to “any entity operating or administering a health program or activity subject to this rule shall take reasonable steps to ensure meaningful access to such programs or activities by limited English proficient individuals.” This would replace the 2016 rule, which states that covered entities must take “reasonable steps to provide meaningful access to each individual with limited English proficiency who is eligible to be served or likely to be encountered within the entities’ health programs and activities.”

In addition, the revisions include adopting the DOJ’s approach to determining a covered entity’s compliance, which balances the following four factors with an individualized assessment:

  1. The number or proportion of LEP individuals eligible to be served or likely to be encountered in the eligible service population;
  2. The frequency with which LEP individuals come in contact with the entity’s health program, activity, or service;
  3. The nature and importance of the entity’s health program, activity, or service; and
  4. The resources available to the entity and costs.

Legal action

Under the 2016 rule, individuals can pursue legal action against the covered entity if they failed to provide the individual with proper language assistance. The new rule would reverse this provision, and “the Department would no longer take a position on that issue in its regulations, leaving the matter as primarily one for the courts to decide.”

Section 1557 compliance coordinator

The new rule proposes to eliminate the requirement for covered entities with 15 or more employees to designate a compliance coordinator and have a written grievance procedure in place.

Why the repeal?

In sum, HHS proposed the revisions to Section 1557 to “better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557.”

HHS has projected that the revisions will save an estimated $3.6 billion over the first five-year period after the regulations are finalized, a large portion of which will come from stripping the mandatory notices (i.e., taglines and non-discrimination policies) requirement. HHS has also said the new provisions will ease any burden placed on covered entities and eliminate any redundancies to already established laws.

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If you have any questions about the new Section 1557 revisions and how they might affect your organization, get in touch with us. We care about protecting the rights of LEP individuals, and would love to open up a dialog with you and the community about the proposed changes.

In the meantime, if you’d like more information, you can access the suggested Section 1557 revisions in full online now. There’s also a quick fact sheet, an excellent resource on the revisions in Health Affairs, and an important read summarizing the state law requirements for language access in healthcare.